Argument recap: Catching on slowly

Posted Wed, October 10th, 2012 10:22 pm by Lyle Denniston

Sometimes, it is no favor for a lawyer to have to argue at the Supreme Court the first thing in the morning — especially when the Justices may well be thinking about a task they will have later in the day. That seemed to be the situation Wednesday morning when the Court took to the bench and heard a severely complex case about immigration, ahead of their historic hearing after that, on the constitutionality of affirmative action. When the Court finally got through to what was at stake in the immigration case, the thrust of the case had shifted totally. The first lawyer didn’t fare so well, but, as it turned out, probably didn’t need to; the second one gave it away.

The case of Moncrieffe v. Holder (11-702) is truly deceptive in its superficial simplicity. It is about a Jamaican national who had lived legally in the U.S. from childhood, who got busted in Georgia for having the equivalent of two marijuana joints in his possession, and who wound up deported as if he were a big-time drug dealer. Beyond those bare facts, the case is a nearly mind-boggling inquiry into federal statutes that don’t seem to mean what they say, and produce both more and less than they seem to promise. Hardly the kind of thing even a judge wants to encounter early in the day.

To sort it out, here is about as plain as the case can be described: If one commits a crime under state law that is the equivalent of a serious federal crime, one gets deported automatically, and the government has no power to spare that person from deportation. But if the crime under state law can be interpreted as a minor offense for federal purposes, the person is still subject to deportation, but can ask the U.S. attorney general to erase that order. Lay those legal concepts over the facts of the case, and it seems that Adrian Moncrieffe shouldn’t have been deported without a chance to plead for a chance to stay. But the government says his crime was automatically a federal felony, so Congress intended for him to be deported — except that the government does not think so, any more. Got it? Now, keep that word “except” in mind, and you are on your way to understanding what happened.

Moncrieffe was represented by a Washington attorney, Thomas C. Goldstein. (See the disclosure, below). He has a habit, sometimes disarming to the Justices, of being a little bit too familiar, and a little too fast with a quip. He opened, for example, by calling his case “today’s undercard.” For those ignorant of the world of boxing, that means the prelim before the main bout.

And sometimes, Goldstein gets a bit too clever: on Wednesday, he thought one of the best ways to put on his case for Moncrieffe was to talk about the strong points in the government’s argument. But that only seemed to confuse things, and the Justices (perhaps affected by inattention) were not following. If his argument did not seem exactly doomed, it looked, at best, shaky. In fact, he only needed to sit down after using his time.

As it turned out, the government’s argument appeared to fail, because its lawyer, Assistant to the Solicitor General Pratik A. Shah, wanted to have things both ways — tough on non-citizens, and yet not so tough; devoted to a categorical interpretation of the law, but with a huge loophole. One Justice, who was paying attention, suggested in fact that the government lawyer had dug himself into a hole. It was more like a rhetorical chasm.

For Goldstein’s case, he only needed to make the point that Moncrieffe’s crime was really not a felony, it was only a misdemeanor: Moncrieffe had only about 1.3 grams of marijuana in his car when stopped by police, and that should qualify as only a misdemeanor under federal narcotics law — especially since he only had the drug for “social” sharing, and got no money, so he probably didn’t even qualify as a dealer. Federal narcotics law, his lawyer told the Court, makes an exception to the crime of possession with intent to distribute, when the amount is small and no money is involved. Simple enough. And that is the way Goldstein began.

Soon, however, the argument got more complicated, as Goldstein suggested that he, like the government, was applying a “categorical approach” and he spent some time telling how the two sides were sometimes in agreement. It was not clear that the Justices saw it the same way, because they began to probe into some statutory and factual specifics, some of which made it seem that the legal issue was not categorical, at all. For example, Goldstein pointed out that, although Moncrieffe was treated as if he had been convicted, he really hadn’t been. Justice Stephen G. Breyer, who now and then has a tendency to wander well off of a case, wanted to know why Goldstein had not called up four state prosecutors to find out how they prosecute marijuana offenses in which only a small amount was involved. The weeds were getting deeper.

Justice Ruth Bader Ginsburg at one point suggested that the federal government’s view, as stated in the briefs, really did make sense; she would learn differently later, as would the Court as a whole.

When government lawyer Shah got up, he wanted to drive home the point that Congress had tightened the rules in favor of mandatory deportation for serious crimes, because the lawmakers felt that immigration officials were letting too many convicted individuals get a cancellation of deportation. So, he said, the attorney general’s discretion to grant exceptions was taken away. And, of course, he was talking about crimes made serious under federal law even though, under state law, they might qualify as non-serious misdemeanors.

Shah sounded, at the outset, as if he were, indeed, making a categorical argument: you commit a state crime that overlaps with a federal felony, it is a felony, and you get deported. He stressed how concerned Congress, and the government, were that serious drug crimes had been committed by a lot of non-citizens under laws that some might think involved only misdemeanors, and Congress meant to put a stop to that, to see that those serious offenders left the country. Since Moncrieffe was convicted (or so it was said) under a state law that did not take account of the amount of drug involved or the presence or absence of money, someone else convicted under a similar law might, in fact, have dealt in a lot of drugs, the government lawyer indicated.

The problem, though, began when Shah tried to square this seemingly hard-and-fast (categorical) approach with the separate provision on which Goldstein had been relying: the narcotics law that makes exceptions to felony treatment if a small amount of drugs and no money were involved. That law, said Shah, would simply fold into the immigration law, and an immigration judge could take that into account in deciding for or against deportation. The Justices pounced, trying to find out where that add-on proceeding came from, and it was routinely suggested that it was simply nowhere to be found.

Shah’s low moment, perhaps, came when Justice Elena Kagan told him: “Your arguments all go towards a very purist solution. And then you say, oh, no that’s a crazy solution. It’s a crazy solution because we would wind up saying that misdemeanants like this person…would wind up as aggravated felons and must be deported.” But, she added, that is not a result that Shah had said the government wanted, since he had argued for some mode of making an exception to the automatic rule: commit a crime treated as a felony, and you get deported.

It was a position that Justice Sonia Sotomayor would call a hole that Shah should try to climb out of; he never did.

Disclosure: Thomas C. Goldstein, Moncrieffe’s lawyer, and his colleagues at the law firm of Goldstein & Russell have various capacities with this blog that are separate from their professional representation in this case. The author of this post works only for the blog and operates independently of the law firm’s practice.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.